appurtenances,easements, licenses, privileges and other property interests belongingor appurtenant to the Real Property; (vi) any roads, streets and ways, public and private,serving the Real Property (including without limitation, all rights to develop the RealProperty granted by Governmental Authorities having jurisdiction over the Real Property);and (vii) all other property interests belonging or appurtenant to the Real Property (all ofthe foregoing items in clauses (i) through (vii) above, now or hereafter existing,collectively, the “Property”); provided, that notwithstanding any provisioncontained in this Agreement, expressly excluded from the definition of “Property” are thefollowing items: personal property, appliances, furniture and equipment owned by Tenant orowned or leased from third parties by the Tenant in possession of the Property pursuant tothe Lease from time to time situated on or used in connection with the Property; and(b) all of SMC’s right, title and interest in and to the Shares.**Section 1.02. Purchase Price**. The purchase price to be paid by Purchaser to Seller for theProperty and the Shares is Fifty Million and 00/100 Dollars ($50,000,000) (the “PurchasePrice”). The Purchase Price, with such adjustments as may be reflected on the closingsettlement statements referenced in Sections 5.01(a)(iv) and 5.02(a)(iv), shall be paid on theClosing Date by wire transfer of immediately available federal funds to an account designated inwriting by Seller.**Section 1.03. Prorations**. All taxes, insurance, utilities and maintenance expenses relatingto the Property for the year of Closing shall be prorated as of the Closing Date and Seller’sportion thereof shall be paid by the Tenant, to the extent that such expenses are obligations ofthe Tenant pursuant to the Lease. All rents paid in advance or payable pursuant to the Lease shallbe prorated as of the Closing Date and shall be paid by Purchaser to Seller or by Seller toPurchaser, as applicable, at Closing.**Section 1.04. Condition of Property**. Seller and Purchaser understand and agree that, exceptas expressly provided by the terms of this Agreement, Purchaser’s purchase of the Property andother rights to be conveyed, sold, transferred and/or assigned pursuant to this Agreement shall beon an “AS IS” “WHERE IS” physical basis, “WITH ALL FAULTS,” without representation or warranty,express or implied, with regard to physical condition, including without limitation, any latent orpatent defects, conditions of soils or groundwater, existence or nonexistence of hazardousmaterials, quality of construction, workmanship, merchantability or fitness for any particularpurpose as to the physical measurements or useable space thereof. Purchaser hereby acknowledgesthat Purchaser occupied the Property prior to Seller’s acquisition thereof; Purchaser has continuedto occupy and operate its business on the Property since Seller’s acquisition thereof; Purchaserhas inspected or will inspect the Property to Purchaser’s satisfaction; and Seller does not plan toconduct its own inspection and shall not be liable for any latent or patent defects in theProperty. Purchaser acknowledges that, except as expressly set forth in this Agreement, neitherSeller nor any representative or agent of Seller has made any representation or warranty as to anyof the following: (a) the physical or environmental condition (including surface and subsurfaceconditions), state of repair, income, expenses, operations of the
 
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Property and surroundingproperty; (b) the assignability, assumability, transferability or validity of any licenses,permits, government approvals, warranties or guaranties relating to the Property or the use and operation thereof; (c) theaccuracy or completeness of any information provided by Seller with respect to the Property; (d)compliance or noncompliance with local, state or federal statutes, ordinances, orders orregulations concerning the Property or the use thereof; (e) prior or current operations conductedon the Property; (f) the operation of any business conducted at the Property; or (g) any matter orthing affecting or relating to the Property, the Lease or this Agreement not expressly set forth inthis Agreement. Purchaser has not been induced by and has not relied upon any statement,representation or agreement, whether express or implied, not specifically set forth in thisAgreement. Except as expressly set forth in this Agreement or any other Transaction Document,Seller shall not be liable or bound in any manner by any oral or written statement, agreement orinformation pertaining to the Property, the Tenant, the Lease or this Agreement furnished by anyagent, employee or other Person.**Section 1.05. Purchaser’s Financing Contingency**. At or prior to the Closing, Purchaser shallhave obtained a market rate loan for this Transaction in the amount of not less than Twenty FiveMillion and 00/100 Dollars ($25,000,000) on terms acceptable to Purchaser, in its sole and absolutediscretion (the “Loan”), which Loan may be secured by the Property and other assets ofPurchaser. If Purchaser notifies Seller prior to the Closing that Purchaser is unable to obtainthe Loan at or prior to the Closing, this Agreement shall terminate, in which event neitherPurchaser nor Seller shall have any further duties or obligations under this Agreement, except asotherwise provided herein.**Section 1.06. Lease**. The parties acknowledge that the Property is currently leased toPurchaser as Tenant under the Lease, and Seller and Purchaser hereby agree that they shall enterinto, on or before the Closing Date, an unconditional and irrevocable termination of the Lease (the“Lease Termination”) whereupon, effective upon Closing and except in Tenant’s capacity asPurchaser under this Agreement and except for those provisions in the Lease that are to survivetermination of the Lease, Tenant shall have no right, title or interest in or to the Property orany part thereof.**Section 1.07. Amendment to Lockup Restriction; Transfer Instructions**. Purchaser currentlyhas the right to acquire the Shares from SMC at any time prior to November 18, 2011, and the Sharesare subject to a lock-up restriction that restricts SMC’s ability to transfer the Shares prior tosuch date (the “Lock-Up Restriction”). On or before the Closing Date, Purchaser and Sellershall provide written instructions to Computershare Trust Company, N.A., as transfer agent ofPurchaser (“Transfer Agent”), substantially in the form of Exhibit E attachedhereto and incorporated herein (“Transfer Instructions”), directing the Transfer Agent,effective upon the Closing Date, to change the termination date of the Lock-Up Restriction fromNovember 18, 2011 to the Closing Date and to transfer the Shares to Purchaser in accordance withthe Transfer Instructions.
 
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**ARTICLE II****DUE DILIGENCE IN RESPECT OF THE PROPERTY****Section 2.01. Title Insurance**.(a) ***Title Commitment and Title Policy***. Purchaser has ordered an owner’s titleinsurance commitment (“Title Commitment”) with respect to the Property issued by theTitle Company, for an owner’s ALTA extended coverage title insurance policy (the “TitlePolicy”) in the amount of the Purchase Price, and a copy of the Title Commitment andcopies of the Schedule B-2 exceptions have been delivered to Purchaser.(b) ***Title Company***. The Title Company is hereby employed by the parties to act asescrow agent in connection with the Transaction. This Agreement shall be used asinstructions to the Title Company, as escrow agent, which may provide its standardconditions of acceptance of escrow; *provided, however,*that in the event of anyinconsistency between such standard conditions of acceptance and the terms of thisAgreement, the terms of this Agreement shall prevail. The Title Company’s receipt of thisAgreement and the opening of an escrow pursuant to this Agreement shall be deemed toconstitute conclusive evidence of the Title Company’s agreement to be bound by the terms andconditions of this Agreement pertaining to the Title Company.(c) ***Title Company Actions***. The Title Company is authorized to pay, from any funds heldby it for each party’s respective credit and in accordance with the closing statementsexecuted by both parties, all amounts set forth on the closing statements as necessary toprocure the delivery of any documents and to pay, on behalf of Purchaser and Seller, allcharges and obligations payable by them, respectively, in connection with the Transaction.Seller and Purchaser will pay all charges payable by them to the Title Company. The TitleCompany shall not cause the consummation of the Transaction unless and until it has receivedwritten instructions from Seller and Purchaser to do so. The Title Company is authorized,in the event any conflicting demand is made upon it concerning these instructions or theescrow, at its election, to hold any documents and/or funds deposited hereunder until anaction shall be brought in a court of competent jurisdiction to determine the rights ofSeller and Purchaser or to interplead such documents and/or funds in an action brought inany such court. Deposit by the Title Company of such documents and funds, after deductingtherefrom its reasonable expenses and attorneys’ fees incurred in connection with any suchcourt action, shall relieve the Title Company of all further liability and responsibilityfor such documents and funds.(d) ***Permitted Title Encumbrances***. Purchaser has approved the exceptions set forth inthe Title Commitment that are set forth on Exhibit C attached hereto and each ofSeller and Purchaser agrees that it shall take such actions as are necessary to enable theTitle Company to issue the Title Policy subject only to the Permitted Encumbrances.
 
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**Section 2.02. Seller Documents**. Seller has delivered to Purchaser, with respect to theProperty, all of the following items, to the extent that such items are in Seller’s possession orunder its control (collectively, the “Seller Documents”):(a) survey or site plan related to the Property (the “Survey”);(b) every environmental report relating to the Property (the “EnvironmentalReport”) and any other third party diligence reports relating to the Property;(c) “as-built” plans and specifications for improvements on the Property;(d) a certificate of occupancy for the Property;(e) copies of any existing leases, if any, between Seller and tenants of the Propertyother than the Lease;(f) all drawings, plans, specifications and all engineering reports for and relating tothe Property; and(g) any other document related to the Property that is reasonably requested byPurchaser, either prior to or after Closing.Except as expressly set forth in this Agreement, Seller makes no representation or warrantyregarding the Seller Documents, or any other materials relating to the Property delivered toPurchaser.**Section 2.03. Survey**. Purchaser may order an update to the Survey (or a new survey) ifrequired by the Title Company or otherwise required by Purchaser in connection with the Loan.**Section 2.04. Environmental**. Purchaser may, at its sole cost and expense, order an update tothe Environmental Report or a new Phase I environmental assessment report, if deemed necessary byPurchaser in its sole discretion.**Section 2.05. Inspections**. Purchaser has performed whatever investigations, tests andinspections upon the Property that Purchaser deemed appropriate (collectively, the“Inspections”) prior to the Closing Date. Purchaser hereby waives any objections basedupon the Inspections.**ARTICLE III****CLOSING****Section 3.01. Closing Date**. Subject to the provisions of Article V of this Agreement, theclosing date of the Transaction (the “Closing”) shall occur on or before April 30, 2009(the “Closing Date”).
 
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**Section 3.02. Actions Relating to the Transaction**. On or before the Closing Date or asotherwise mutually agreed upon by Seller and Purchaser:(a) the parties shall deposit with the Title Company and the Transfer Agent, asapplicable, all documents (including without limitation, the executed Transaction Documents)necessary to comply with the parties’ respective obligations with respect to the Transactioncontemplated hereunder;(b) Purchaser shall deposit the Purchase Price and the parties shall deposit any otherfunds required hereunder with the Title Company, in a timely manner to permit theconsummation of the Transaction on the Closing Date; and(c) (i) possession of the Property, free and clear of all tenants or other parties inpossession, except for Purchaser as Tenant, and any subtenants of Tenant, and (ii) ownershipof the Shares, free and clear of all liens and encumbrances, shall be delivered toPurchaser.**Section 3.03. Transaction Costs**. Except as otherwise expressly set forth in this Agreement,all costs associated with the Transaction, including without limitation, updates (if any) of theSurvey, the cost of the premium related to the Title Policy and all reasonable endorsementsthereto, recording fees, transfer taxes and all closing and escrow costs, shall be shared one-halfby Purchaser and one-half by Seller; *provided, however,*that notwithstanding the foregoing, eachparty shall bear its own attorneys’ fees and costs in connection with the Transaction, andPurchaser shall bear all costs associated with its procurement of the Loan, including withoutlimitation, any endorsements to any lender’s title insurance policy, and the fees, if any, chargedby the Transfer Agent in connection with the transfer of the Shares to Purchaser.**ARTICLE IV****REPRESENTATIONS WARRANTIES AND COVENANTS****Section 4.01. Seller**. Seller represents and warrants to, and covenants with, Purchaser asfollows:(a) ***Organization and Authority***. Seller is duly organized or formed, validly existingand in good standing under the laws of its state of formation. Seller has all requisitepower and authority to execute, deliver and perform its obligations under this Agreement andall of the other Transaction Documents, and to carry out the Transaction. The Person whohas executed this Agreement on behalf of Seller has been duly authorized to do so.(b) ***Enforceability of Documents***. Upon execution by Seller, this Agreement and theother Transaction Documents shall constitute the legal, valid and binding obligations ofSeller, enforceable against Seller in accordance with their respective terms, except as suchenforcement may be limited by bankruptcy, insolvency, reorganization,arrangement, moratorium, or other similar laws relating to or affecting the rights ofcreditors generally, or by general equitable principles.
 
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(c) ***No Other Agreements and Options***. Except as set forth in the Lease, Seller has madeno commitment, obligation, or agreement, including, without limitation, any right of firstrefusal, option to purchase or lease granted to a third party, which could prevent Sellerfrom completing or impair Seller’s ability to complete the sale of the Property under thisAgreement, or which would bind Purchaser subsequent to consummation of the Transaction.(d) ***No Violations***. The authorization, execution, delivery and performance of thisAgreement and the other Transaction Documents will not (i) violate any provisions of theorganizational documents of Seller, (ii) result in a violation of or a conflict with, orconstitute a default (or an event which, with or without due notice or lapse of time, orboth, would constitute a default) under any other document, instrument or agreement to whichSeller is a party or by which Seller, the Property or any of the property of Seller issubject or bound, (iii) result in the creation or imposition of any lien, restriction,charge or limitation of any kind, upon the Property or the Shares, or (iv) to Seller’sactual knowledge, without inquiry, violate any applicable law, statute, regulation, rule,ordinance, code, rule or order of any court or Governmental Authority.(e) ***Consents and Approvals***. No consent, approval, waiver, license, permit, order orauthorization of, or registration, declaration or filing with, any Governmental Authority,and no consent, approval, waiver or other similar authorization of any other Person, isrequired to be obtained by or on behalf of Seller as a result of, or in connection with, oras a condition of the lawful execution, delivery and performance of this Agreement or theconsummation of the Transaction contemplated hereby.(f) ***Compliance***. Except as may be contained in any Seller Document delivered toPurchaser, Seller has not received notification from any Governmental Authority or otherthird party that the Property or the condition or use thereof is in violation of (i) anyapplicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders andapprovals of any Governmental Authority having jurisdiction over the Property, (ii) anyrestrictions, covenants and encumbrances of record with respect to the Property, or (iii)any agreements, contracts, insurance policies and conditions applicable to the Property orthe ownership, operation, use or possession thereof.(g) ***Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws***.Without in any way limiting the provisions of Section 4.01(f), Seller is not currentlyidentified on the OFAC List, and is not a Person with whom a citizen of the United States isprohibited from engaging in transactions by any trade embargo, economic sanction, or otherprohibition of United States law or regulation.(h) ***Litigation***. Seller has not received notification from any Governmental Authorityor third party of any legal, administrative, arbitration or other proceeding, claim oraction pending or involving or, to Seller’s actual knowledge without inquiry, threatenedagainst or with respect to the Property before any Governmental Authority.
 
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(i) ***Title to Property***. Title to the Property is vested in Seller. Upon Closing, titleto the Property shall be vested in Purchaser or its nominee or assigns (if any), free andclear of all liens, restrictions, encroachments and easements, except for the PermittedEncumbrances.(j) ***Title to Shares***. Seller is the sole record and beneficial owner of the Shares; andexcept for the Lock-Up Restriction, (i) Seller has good and valid title to the Shares, freeand clear of all liens or encumbrances, and free and clear of any rights and restrictions ofany nature other than those imposed by applicable federal and state securities laws ; and(ii) Seller is not bound by any contract, agreement, arrangement, commitment orunderstanding (written or oral) with, and has not granted any option, right or otherinterest to, any Person with respect to the Shares. Seller will transfer to Purchaser legaland beneficial ownership, and good and valid title, to the Shares, free and clear of allliens and encumbrances.(k) ***Condemnation; Blighted Areas; Wetlands***. Seller has not received notification fromany Governmental Authority or third party of any pending or contemplated (i) condemnation oreminent domain proceedings affecting the Property, (ii) declaration of the Property beinglocated in a blighted area, or (iii) designation of the Property as wetlands.(l) ***Environmental***. Except as may be contained in an Environmental Report, Seller hasnot received any written or oral notice or other communication regarding the Property fromany Person (including but not limited to a Governmental Authority) relating to (i) HazardousMaterials, Regulated Substances or underground storage tanks, or remediation thereof, (ii)the possible liability of any Person pursuant to any Hazardous Materials Law, (iii) otherenvironmental conditions in connection with the Property, or (iv) any actual or potentialadministrative or judicial proceedings in connection with any of the foregoing.(m) ***Securities Law Matters***.(i) Seller is an institutional “accredited investor” as defined in Rule 501under the Securities Act of 1933, as amended.(ii) The decision to sell the Shares as part of the Transaction has been madeby Seller, and Seller confirms that it has undertaken an independent analysis of themerits and risks of a sale of the Shares, based on Seller’s own financialcircumstances.(iii) Seller has had the opportunity to review publicly available informationregarding Purchaser and to ask questions of, and receive answers from, Purchaserconcerning such information (it being understood that Seller has neither requestednor received material, non-public information from Purchaser).
 
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(iv) In making a decision to sell the Shares, Seller has not received or reliedon any communication, investment advice, or recommendation from Purchaser.All representations, warranties and covenants of Seller made in this Agreement, except asotherwise expressly set forth herein, shall survive for one (1) year following Closing.**Section 4.02. Purchaser**. Purchaser represents and warrants to, and covenants with, Seller asfollows:(a) ***Organization and Authority***. Purchaser is duly organized and formed, validlyexisting and in good standing under the laws of its state of formation. Purchaser has allrequisite power and authority to execute, deliver and perform its obligations under thisAgreement and all of the other Transaction Documents and to carry out the Transaction. ThePerson who has executed this Agreement on behalf of Purchaser has been duly authorized to doso.(b) ***Enforceability of Documents***. Upon execution by Purchaser, this Agreement and theother Transaction Documents shall constitute the legal, valid and binding obligations ofPurchaser, enforceable against Purchaser in accordance with their respective terms, exceptas such enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement,moratorium, or other similar laws relating to or affecting the rights of creditorsgenerally, or by general equitable principles.(c) ***Litigation***. There are no actions or proceedings pending against or involvingPurchaser before any Governmental Authority which in any way adversely affect or mayadversely affect Purchaser or Purchaser’s ability to perform under this Agreement and theother Transaction Documents.(d) ***OFAC List***. Purchaser is not currently identified on the OFAC List, and is not aPerson with whom a citizen of the United States is prohibited from engaging in transactionsby any trade embargo, economic sanction, or other prohibition of United States law,regulation, or executive order of the President of the United States.(e) ***Bankruptcy Petition***. Purchaser hereby agrees that it shall not institute against,or join any other Person in instituting against, Seller, any bankruptcy, reorganization,arrangement, insolvency or liquidation proceeding, or any other proceeding under any federalor state bankruptcy or similar law. The provisions of this Section shall survive Closing ortermination of this Agreement.(f) ***Consents and Approvals***. No consent, approval, waiver, license, permit, order orauthorization of, or registration, declaration or filing with, any Governmental Authority,and no consent, approval, waiver or other similar authorization of any other Person, isrequired to be obtained by or on behalf of Purchaser as a result of, or in connection with,or as a condition of the lawful execution, delivery and performance of this Agreement or theconsummation of the Transaction contemplated hereby.
 
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All representations, warranties and covenants of Purchaser made in this Agreement, except asotherwise expressly set forth herein, shall survive for one (1) year following Closing.**ARTICLE V****CONDITIONS PRECEDENT TO CLOSING****Section 5.01. Purchaser’s Conditions to Closing**. Purchaser shall not be obligated to effectthe Closing until the fulfillment (or written waiver by Purchaser) of all of the followingconditions:(a) Seller shall have delivered to the Title Company each of the following items:(i) fully executed Deed, Lease Termination and all other Transaction Documents;(ii) a duly executed FIRPTA affidavit from Seller in the form attached heretoas Exhibit D (“Non-Foreign Seller Certificate”);(iii) other documents that may be required by the Title Company for issuance ofthe Title Policy;(iv) a closing settlement statement reflecting the credits, prorations, andadjustments contemplated by or specifically provided for in this Agreement;(v) all documents required to be delivered by this Agreement and the otherTransaction Documents with respect to the Property; and(vi) such further documents as reasonably may be required in order to fully andlegally effect the Transaction.(b) Purchaser shall have received the Title Commitment and the Title Company’sirrevocable commitment to insure title by means of the Title Policy, in form and substanceacceptable to Purchaser.(c) Purchaser’s lender shall have received from the Title Company an irrevocablecommitment to issue an ALTA lender’s policy of title insurance, in form and substanceacceptable to Purchaser’s lender.(d) Purchaser’s lender shall have funded the Loan.(e) The Transaction shall have been approved by Purchaser’s board of directors.(f) The acceptance of the Transfer Instructions by Transfer Agent.
 
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Upon the fulfillment or Purchaser’s written waiver of all of the above conditions, Purchasershall deposit the Purchase Price with the Title Company for payment to Seller and the Closing ofthe Transaction shall occur in accordance with the terms and conditions of this Agreement. Unlessotherwise dated, all of the documents to be delivered at Closing shall be dated as of the ClosingDate.**Section 5.02. Seller’s Conditions Precedent to Closing**. Seller shall not be obligated toeffect the Closing until the fulfillment (or written waiver by Seller) of all of the followingconditions:(a) Purchaser shall have delivered to the Title Company each of the following items:(i) the Purchase Price in immediately available federal funds;(ii) fully executed Lease Termination and all other Transaction Documents;(iii) other documents that may be required by the Title Company for issuance ofthe Title Policy;(iv) a closing settlement statement reflecting the credits, prorations, andadjustments contemplated by or specifically provided for in this Agreement;(v) all documents required to be delivered by this Agreement and the otherTransaction Documents with respect to the Property; and(vi) such further documents as reasonably may be required in order to fully andlegally effect the Transaction.(b) Seller shall have obtained all third party consents deemed necessary in Seller’ssole discretion for the release of any Seller mortgage or other document (including anysecuritization document) which encumbers the Property.(c) The delivery of the Transfer Instructions by Purchaser and the acceptance thereofby Transfer Agent.**ARTICLE VI****DEFAULTS; REMEDIES****Section 6.01. Default**. Each of the following shall be deemed an event of default (each, an“Event of Default”):(a) if any representation or warranty of a party set forth in this Agreement or anyother Transaction Document is false in any material respect or if a party renders any falsestatement; or
 
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(b) if a party fails to keep or perform any of the terms or provisions of thisAgreement or if any condition precedent is not satisfied by the other party.**Section 6.02. Purchaser Remedies**. In the event of any Event of Default by Seller, Purchasershall be entitled to exercise any one or more of the following remedies:(a) Purchaser may seek specific performance and/or injunctive relief with respect toany covenants or agreements of Seller hereunder; and/or(b) Purchaser may recover damages, including without limitation, Purchaser’s actual andreasonable out-of-pocket costs related to this Agreement and the Transaction intendedhereunder.**Section 6.03. Seller Remedies**. In the event of any Event of Default by Purchaser, Sellershall be entitled to exercise any one or more of the following remedies:(a) Seller may seek specific performance and/or injunctive relief with respect to anycovenants or agreements of Purchaser hereunder; and/or(b) Seller may recover damages, including without limitation, Seller’s actual andreasonable out-of-pocket costs related to this Agreement and the Transaction intendedhereunder.**Section 6.04. Waiver**. Purchaser and Seller each hereby waive all other rights and remediesnot expressly provided for herein, whether in law or in equity, including, without limitation, anyright to seek rescission with respect to the transfer of, or assert any lien or other claim withrespect to, the Property.**ARTICLE VII****MISCELLANEOUS****Section 7.01. Risk of Loss**.(a) ***Condemnation***. If, prior to Closing, action is initiated to take the Property, orany portion thereof, by eminent domain proceedings or by deed in lieu thereof, Purchaser mayelect at or prior to Closing, to (i) terminate this Agreement, in which event neitherPurchaser nor Seller shall have any further duties or obligations under this Agreement,except as otherwise provided herein, or (ii) proceed to close, in which event all ofSeller’s assignable right, title and interest in and to the award of the condemningauthority, to the extent that the amount of such award does not exceed the Purchase Price,shall be assigned to Purchaser at Closing and there shall be no reduction in the PurchasePrice.
 
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(b) ***Casualty***. Seller assumes all risks and liability for damage to or injury occurringto the Property by fire, storm, accident, or any other casualty or cause until Closing hasbeen consummated. If the Property, or any part thereof, suffers any damage prior to Closingfrom fire or other casualty, which Seller, at its sole option, does not electto repair, Purchaser may elect at or prior to Closing, to (i) terminate this Agreement,in which event neither Purchaser nor Seller shall have any further duties or obligationsunder this Agreement, except as otherwise provided herein; or (ii) consummate Closing, inwhich event all of Seller’s right, title and interest in and to the proceeds of anyinsurance covering such damage (less an amount equal to any expense and costs incurred bySeller to repair or restore the Property and any portion paid or to be paid on account ofthe loss of rents or other income from the Property for the period prior to the ClosingDate, all of which shall be payable to Seller), to the extent that the amount of suchinsurance does not exceed the Purchase Price, shall be assigned to Purchaser at Closing.**Section 7.02. Notices**. All notices, demands, designations, certificates, requests, offers,consents, approvals, appointments and other instruments given pursuant to this Agreement(collectively called “Notices”) shall be in writing and given by (a) hand delivery; (b)express overnight delivery service; (c) certified or registered mail, return receipt requested; or(d) electronic mail message, and shall be deemed to have been delivered upon (i) receipt, if handdelivered; (ii) the next Business Day, if delivered by a reputable express overnight deliveryservice; (iii) the third Business Day following the day of deposit of such notice with the UnitedStates Postal Service, if sent by certified or registered mail, return receipt requested; or (iv)transmission. Notices shall be provided to the parties and addresses (or facsimile numbers, asapplicable) specified below:       If to Purchaser: Grand Canyon Education, Inc.    3300 West Camelback Road    Phoenix, AZ 85017    Attention: Daniel E. Bachus, Chief Financial Officer    Telephone: (602) 639-6648    Facsimile: (602) 639-7846    E-Mail: dbachus@gcu.edu       With a copy To: Grand Canyon Education, Inc.    3300 West Camelback Road    Phoenix, AZ 85017    Attention: Christopher C. Richardson, General Counsel    Telephone: (602) 639-6820    Facsimile: (602) 639-7846    E-Mail: crichardson@gcu.edu       and DLA Piper LLP (US)    2525 East Camelback Road Suite 1000    Phoenix, AZ 85016-4232    Attention: David P. Lewis    Telephone: (480) 606-5126    Facsimile: (480) 606-5526    E-Mail:david.lewis@dlapiper.com
 
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       If to Seller: Spirit Master Funding, LLC    14631 North Scottsdale Road, Suite 200    Scottsdale, AZ 85254-2711    Attention: Mr. Gregg Seibert    Telephone: (480) 606-0820    Facsimile: (480) 606-0826    E-Mail:gseibert@spiritfinance.com         Spirit Management Company    14631 North Scottsdale Road, Suite 200    Scottsdale, AZ 85254-2711    Attention: Mr. Gregg Seibert    Telephone: (480) 606-0820    Facsimile: (480) 606-0826    E-Mail:gseibert@spiritfinance.com       With a copy to: Kutak Rock LLP    1801 California Street, Suite 3100    Denver, CO 80202    Attention: Peggy A. Richter    Telephone: (303) 297-2400    Facsimile: (303) 292-7799    E-Mail:peggy.richter@kutakrock.comor to such other address or such other Person as either party may from time to time hereafterspecify to the other party in a notice delivered in the manner provided above. Whenever in thisAgreement the giving of Notice is required, the giving thereof may be waived in writing at any timeby the Person or Persons entitled to receive such Notice.**Section 7.03. Assignment**. Neither Seller nor Purchaser may assign its respective rights andinterests under this Agreement in whole or in part without the prior written consent of the otherparty; provided, that so long as written notice thereof is provided to all other parties hereto,either Seller or Purchaser may (in whole or in part) assign its respective rights and interestsunder this Agreement to any lender in connection with the Loan or any other financing provided toSeller or Purchaser or their respective Affiliates from time to time. No assignment of a party’srespective rights and interests under this Agreement shall relieve such party of any liability forthe performance of any obligation of such party contained herein.**Section 7.04. Indemnity**. Intentionally deleted.**Section 7.05. Release**.(a) Expressly excluding any Losses or claims (i) related to all provisions of the Leasewhich are to survive the expiration or termination of the Lease, which provisions shallremain in full force and effect and shall not be subject to this Section 7.05(a), and (ii)arising under or related to this Agreement, which shall not be subject to this Section7.05(a) and are expressly excluded herefrom, each party hereby releases theother party from all Losses and claims of whatever nature, whether known or unknown,which such party now has, or in the future may have with respect to the Property, the Leaseand the Tenant.
 
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(b) Effective as of the Closing Date, Seller hereby fully and forever releases anddischarges Purchaser and its directors, officers, stockholders, agents, representatives,affiliates, and each person who controls any of them within the meaning of Section 15 of theSecurities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, asamended (each, a “Released Party”) of and any and all claims, accusations, demands,liabilities, obligations, responsibilities, suits, actions and causes of action, whetherliquidated or unliquidated, fixed or contingent, known or unknown, or otherwise, that Sellerever had, now has, or may hereafter have or claim to have against the Released Parties, ineach case, arising out of, relating to, or otherwise connected with the Shares or Seller’sownership of the Shares; *provided, however,*that notwithstanding the foregoing, Sellerretains all of its rights under this Agreement.(c) Each party hereto agrees that, to the fullest extent permitted by law, it will notprosecute, nor allow to be prosecuted on its behalf, in any administrative agency, whetherstate or federal, or in any court, whether state or federal, any claim or demand of any typerelated to the matters released in this Section 7.05.**Section 7.06. Brokerage Commission**. Each of the parties represents and warrants to the otherthat it has not dealt with, negotiated through or communicated with any broker, finder orintermediary for or on account of or in connection with this Transaction. Each party shallindemnify, defend and hold harmless each other party from and against any and all claims, loss,costs and expenses, including reasonable attorneys’ fees, resulting from any claims that may bemade against such party by any other broker, finder or intermediary claiming a commission or feeby, through or under the other party. The parties’ respective obligations under this Section 7.06shall survive Closing or termination of this Agreement.**Section 7.07. Reporting Requirements**. The parties agree to comply with any and all reportingrequirements applicable to the Transaction which are set forth in any law, statute, ordinance,rule, regulation, order or determination of any Governmental Authority, and further agree uponrequest, to furnish the other party with evidence of such compliance.**Section 7.08. Disclosure**. Except as expressly provided in Section 7.07, in this Section 7.08and by law or judicial action, neither Seller nor Purchaser will make any public disclosure of thisAgreement or the other Transaction Documents, the Transaction or the provisions of the TransactionDocuments without the prior written consent of the other party hereto. The parties also agreethat, notwithstanding any provision contained in this Agreement, any party (and each employee,representative or other agent of any party) may disclose to *any and all Persons, without limitationof any kind,*any matter required under the Securities Act of 1933, as amended, or the SecuritiesExchange Act of 1934, as amended.**Section 7.09. Time is of the Essence**. The parties hereto expressly agree that time is of theessence with respect to this Agreement.
 
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**Section 7.10. Non-Business Days**. If the Closing Date or the date for delivery of a notice orperformance of some other obligation of a party falls on a Saturday, Sunday or legal holiday in thestate in which any Property is located, then the Closing Date or such notice or performance shallbe postponed until the next Business Day.**Section 7.11. Waiver and Amendment**. No provision of this Agreement shall be deemed waived oramended except by a written instrument unambiguously setting forth the matter waived or amended andsigned by the party against which enforcement of such waiver or amendment is sought. Waiver of anymatter shall not be deemed a waiver of the same or any other matter on any future occasion.**Section 7.12. Personal Liability**. Notwithstanding anything to the contrary provided in thisAgreement, it is specifically understood and agreed, such agreement being a primary considerationfor the execution of this Agreement by the parties, that (a) there shall be absolutely no personalliability on the part of any shareholder, director, officer, manager, member or employee of anyparty with respect to any of the terms, covenants and conditions of this Agreement; (b) each party(“First Party”) waives all claims, demands and causes of action against the shareholders,directors, officers, managers, members or employees of the other party (“Second Party”) inthe event of any breach by the Second Party of any of the terms, covenants and conditions of thisAgreement to be performed by the Second Party; and (c) the First Party shall look solely to theassets of the Second Party for the satisfaction of each and every remedy in the event of any breachby the Second Party of any of the terms, covenants and conditions of this Agreement to be performedby the Second Party, such exculpation of liability to be absolute and without any exceptionwhatsoever.**Section 7.13. Headings; Internal References**. The headings of the various sections andexhibits of this Agreement have been inserted for reference only and shall not to any extent havethe effect of modifying the express terms and provisions of this Agreement. Unless stated to thecontrary, any references to any section, subsection, exhibit and the like contained herein are tothe respective section, subsection, exhibit and the like of this Agreement.**Section 7.14. Construction Generally**. This is an agreement between parties who areexperienced in sophisticated and complex matters similar to the Transaction and the otherTransaction Documents, is entered into by both parties in reliance upon the economic and legalbargains contained herein and therein, and shall be interpreted and construed in a fair andimpartial manner without regard to such factors as the party which prepared the instrument, therelative bargaining powers of the parties or the domicile of any party. Seller and Purchaser wereeach represented by legal counsel competent in advising them of their obligations and liabilitieshereunder.**Section 7.15. Further Assurances**. Each of the parties agrees, whenever and as often asreasonably requested so to do by the other party or the Title Company, to execute, acknowledge, anddeliver, or cause to be executed, acknowledged, or delivered, any and all such further conveyances,assignments, confirmations, satisfactions, releases, instruments, or other documents as may benecessary, expedient or proper, in order to complete any and all conveyances, transfers, sales andassignments herein provided and to do any and all other actsand to execute, acknowledge and deliver any and all documents as so requested in order tocarry out the intent and purpose of this Agreement.
 
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**Section 7.16. Attorneys’ Fees**. In the event of any controversy, claim, dispute or proceedingbetween the parties concerning this Agreement, the prevailing party shall be entitled to recoverall of its reasonable attorneys’ fees and other costs in addition to any other relief to which itmay be entitled.**Section 7.17. Entire Agreement**. This Agreement, all other Transaction Documents, and allother certificates, instruments or agreements to be delivered hereunder and thereunder constitutethe entire agreement between the parties with respect to the subject matter hereof, and there areno other representations, warranties or agreements, written or oral, between Seller and Purchaserwith respect to the subject matter of this Agreement. Notwithstanding anything in this Agreement tothe contrary, upon the execution and delivery of this Agreement by Seller and Purchaser, (a) thisAgreement shall supersede any previous discussions, agreements, term sheets, letters of intent, orcommitment letters relating to the Transaction, including without limitation, any and allagreements related to confidentiality, exclusivity, non-competition, non-solicitation of employees,non-solicitation or pursuit of any business opportunity represented by the Transaction, or anyother term or condition which restricts any business activity of Seller or its Affiliates, (b) theterms and conditions of this Agreement shall control notwithstanding that such terms areinconsistent with or vary from those set forth in any of the foregoing agreements, and (c) thisAgreement may only be amended by a written agreement executed by Seller and Purchaser. Theprovisions of this Section shall survive Closing.**Section 7.18. Recording**. This Agreement shall not be recorded in any office of anyGovernmental Authority; provided, that Purchaser may file this Agreement with the Securities andExchange Commission as required by law.**Section 7.19. Forum Selection; Jurisdiction; Venue; Choice of Law**. For purposes of anyaction or proceeding arising out of this Agreement, the parties hereto expressly submit to thejurisdiction of all federal and state courts located in the State of Arizona, and consent that theymay be served with any process or paper by registered mail or by personal service within or withoutthe State of Arizona in accordance with applicable law. Nothing contained in this section shalllimit or restrict the right of Seller to commence any proceeding in the federal or state courtslocated in the state or states in which the Property is located to the extent Seller deems suchproceeding necessary or advisable to exercise remedies available under this Agreement.**Section 7.20. Separability; Binding Effect; Governing Law**. Each provision hereof shall bevalid and shall be enforceable to the extent not prohibited by law. If any provision hereof or theapplication thereof to any Person or circumstance shall to any extent be invalid or unenforceable,the remaining provisions hereof, or the application of such provision to Persons or circumstancesother than those as to which it is invalid or unenforceable, shall not be affected thereby.Subject to the provisions of Section 7.03, all provisions contained in this Agreement shall bebinding upon, inure to the benefit of and be enforceable by the successors and assigns of eachparty hereto, including, without limitation, any United States trustee, any debtor-in-possession orany trustee appointed from a private panel, in each case to the same extent as ifeach successor and assign were named as a party hereto. This Agreement shall be governed by,and construed in accordance with, the laws of the state of Arizona, without giving effect to itsconflict of laws principles.
 
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**Section 7.21. Survival**. Except for the conditions of Closing set forth in Article V, whichshall be satisfied or waived in writing as of the Closing Date, and except as otherwise expresslyset forth herein, all representations, warranties, agreements, obligations and indemnities ofSeller and Purchaser set forth in this Agreement shall survive Closing.**Section 7.22. Waiver of Jury Trial and Certain Damages**. THE PARTIES HERETO SHALL AND THEYHEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING ORCOUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVERARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY CLAIM OR INJURY OR DAMAGERELATED THERETO. THE PARTIES FURTHER WAIVE THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL ANDINDIRECT DAMAGES FROM THE OTHER PARTY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT WITHRESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY DOCUMENTCONTEMPLATED HEREIN OR RELATED HERETO.**Section 7.23. Counterparts**. This Agreement may be executed in two or more counterparts, eachof which shall be deemed an original, and all such counterparts shall be deemed to constitute oneand the same instrument. The parties agree that transmission of this Agreement by telecopy shallbe deemed a transmission of this Agreement for all purposes.**Section 7.24. IRC Section 1031 Exchange of Property**. The parties agree that, with respect tothe Property, a party may elect to complete an Internal Revenue Code 1031 tax-deferred exchangethat will not affect the terms and conditions of this Agreement; *provided, however,*that (a) thenon-requesting party will cooperate with the requesting party to complete such exchange in a timelymanner on the conditions that the non-requesting party shall not be obligated to pay, suffer orincur any additional expenses, liabilities or delays as a result of cooperating in the requestingparty’s exchange and the non-requesting party shall not be obligated to acquire any other realproperty in connection with such exchange; (b) the non-requesting party shall not have anyliability to the requesting party for failure of the exchange to qualify under the Internal RevenueCode and Treasury Regulations; (c) any assignment(s) made by the requesting party in connectionwith such exchange shall not relieve the requesting party of its obligations under this Agreement;(d) the requesting party shall cause all documentation necessary or appropriate in connection withsuch exchange to be prepared and available for execution no later than the Closing Date; and (e)the completion of one or more tax-deferred exchanges is not a condition to the performanceby the requesting party of its obligations set forth in this Agreement.*[Remainder of page intentionally left blank; signature page(s) to follow]*
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and deliveredas of the Closing Date.         **SELLER:**           **SPIRIT MASTER FUNDING, LLC,**a